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Barry Lane
9 December, 2007  
The very model of a modern major litigant

Victoria’s Transport Accident Commission is supposed to be a model litigant – but Barry Lane wonders what sort of “model” it is following

imageOn November 19, 2002 at picturesque Euroa in country Victoria, Peter Hynes released the radiator cap on his motor car.

Hot water gushed out and scalded Ms Diane Hynes on her back, left shoulder, left side of her face and scalp.

In a proceeding commenced in the County Court on 16 May 2005, Ms Hynes sought damages from Mr Hynes alleging that her injuries were caused by his negligence.

In suing Mr Hynes, Ms Hynes sought to avail herself of the statutory indemnity provided by s.94 of the Transport Accident Act 1986. Section 94 provides:

“The Commission is liable to indemnify … the owner or driver of a registered motor vehicle in respect of any liability in respect of an injury or death of a person caused by or arising out of the use of the motor car in Victoria.”

In an amended defence dated May 3, 2006, Mr Hynes admitted the incident occurred and that he was negligent, but claimed that Ms Hynes’ could not recover damages for non-economic loss because she had not suffered a “significant injury” as that phrase is defined in s.28LF of the Wrongs Act 1958.

The nub of Mr Hynes’ defence, run on his behalf by the Transport Accident Commission (TAC), was that Parts VB and VBA of the Wrongs Act 1958 applied to Ms Hynes’ claim and, because she had not complied with the pre-litigation procedures mandated by those Parts, her claim had to fail.

Parts VB and VBA were enacted in 2002 and 2003 in response to the Parliament’s acceptance of the Ipp report on personal injury litigation arising outside the workplace and on the roads.

Broadly speaking, Parts VA and VBA enacted schemes modelled on those contained in the “serious injury” provisions of the Accident Compensation Act 1985 and the Transport Accident Act 1986 but the various requirements, limitations and restrictions are not as onerous as those ordained by those two Acts.

It was accepted by both parties that the “serious injury” provisions of s.93 of the Transport Accident Act 1986 didn’t apply to Ms Hynes’ claim because the incident was not a “transport accident” as that phrase is defined by the Act.

To be within that provision, among other things, the incident from which injury resulted had to be “directly caused by the driving of a motor car”.

As one might expect, the Parliament was at pains to exclude from the operation of the new regime enacted by Parts VA and VBA (and later Parts X and XI) of the Wrongs Act a number of statutory compensation schemes which did not come within the purview of the Ipp recommendations.

Included in those schemes were the relevant provisions of Part 6 of the Transport Accident Act 1986 see sections 28C(2)(b), 28LC(2)(b), 45(1)(a) and 69(1)(a) of the Wrongs Act 1958.

imageWhen giving the second reading speech on the Wrongs and Other Acts (Law of Negligence Act) 2003, the then Treasurer, John Brumby (seen here), told the Parliament:

“The reforms contained in this bill represent the third and final major tranche of the government’s legislative response to the recent crisis in the affordability and availability of several key insurance products including: builders warranty; public liability; professional indemnity; and medical indemnity.

“As honourable members will be aware, in October 2002 the Wrongs and Other Acts (Public Liability Insurance Reform) Act 2002 came into operation. That act:

  • provided for caps on damages for non-economic loss and for loss of earnings;
  • protected volunteers, food donors and good Samaritans;
  • facilitated the use of structured settlements;
  • ensured that the common courtesies of expressing general apologies or regret after an incident could continue without fear that they would be taken as an admission of liability;
  • facilitated the use of waivers of liability for recreational activities;
  • required the courts to have regard to a claimant’s intoxication or participation in illegal activities; and
  • required greater disclosure of relevant information by insurers.

    “In June this year Parliament passed the Wrongs and Limitation of Actions (Insurance Reform) Act 2003. That act:

  • enacted proportionate liability for claims not relating to death or personal injury;
  • instituted a medical threshold for access to damages for non-economic loss; and
  • reduced the time period within which proceedings must be brought, subject to safeguards for children and other persons needing special provision.

    “These two pieces of legislation reflected a great deal of thought and consideration by many people both within and outside Australian governments on issues relating to the balance between the competing rights and interests of members of the community, both as injured parties making claims for compensation and as purchasers of insurance cover against liability for such compensation.

    “The bill excludes from the impact of its provisions relating to negligence and mental harm claims to which the Accident Compensation Act 1985, the Workers Compensation Act 1958 and the Transport Accident Act 1986 apply.

    “The bill also excludes from the impact of these provisions claims related to injuries that would be eligible for statutory compensation under legislation that provides benefits to volunteers or other non-employees as though the Accident Compensation Act applied, such as the Victoria State Emergency Service Act 1987…

    “Claims relating to injuries that are dust-related conditions or arise from smoking or other use of tobacco products are generally also excluded from the effects of the bill.”

    imageIf you make only a cursory examination of sections 28C(2)(b), 28LC(2)(b), 45(1)(a) and 69(1)(a) of the Wrongs Act 1958, and Brumby’s second reading speech, it’s difficult to imagine how the switched-on lawyers at TAC could come to the conclusion that the new Ipp inspired scheme applied to claimants like Ms Hynes seeking indemnity under s.94 of the Transport Accident Act 1986.

    I won’t bore you with the convoluted, contradictory and eye-spinning propositions TAC’s counsel put to the Court of Appeal in a case stated but Ashley and Redlich (pic) JJA and Bell AJA unanimously gave 12 odd reasons for rejecting them.

    All of which brings me to the point of this treatise. In a document entitled Transport Accident Act Common Law Protocols, TAC says by way of introduction:

    “Consistent with its mission and vision statement, Client Service Charter and public commitment to model litigant guidelines, the Transport Accident Commission (TAC) strives to deliver common law benefits to seriously injured claimants as expeditiously as possible.”

    Although the primary focus of the Protocols concerns s.93 “serious injury” applications they also apply to s.94 proceedings.

    The Department of Justice’s relevant guidelines include these salient points:

  • avoid litigation wherever possible;
  • pay legitimate claims without litigation; and
  • do not rely on technical defences.

    Is TAC alone in thinking it has behaved like a model litigant?


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